​​Admissibility of Evidence - Authentication of email and Questions for Introduction
 
          There is no New York case law on the method of authentication of emails. Computer forensic experts tell us that “the average 13-year-old knows how to create and transmit falsified e-mail” and warn attorneys that “there is nothing you can do to stop someone else from sending an e- mail appearing to come from you.”  They caution that if you are involved in a case where e-mail is at issue, do not accept the presentation of the message on paper. Anybody can use a typical word processor package to create a document that looks like a printed e-mail. [1]  One court has pointed out that in general, emails are more akin to a postcard, as they are less secure and can easily be viewed by a passerby. Moreover, emails are easily intercepted. The process diminishes an individual's expectation of privacy in email communications.[2]
 
          It would appear that emails are subject to the same authentication rules as instant messages, text messages, facsimiles and text messages.  The proponent of an email must demonstrate its genuineness by clear and convincing evidence, thus laying a foundation for its admission. [3]  It must be authenticated by a showing that the item sought to be introduced is what its proponent claims it to be.[4]



 Questions to Lay Foundation for Introduction of email into evidence  
(By Counsel)
 
I ask that this document be marked for identification.
 
Q. I show you this document and ask you if you can identify it?
A. Yes  [5]
Q. What is it?
A. An email I received from the defendant on _________20__.
 
I offer it in evidence.
 
If there is an objection on the ground that a proper foundation has not been laid and the objection is sustained, then ask:
 
(By Counsel)
 
Q. How do you know this email was sent to you by the defendant?
Q. Have you ever communicated by email with the defendant?
Q. When did you communicate by email with the defendant?
Q. Did you obtain the defendant's email address?
Q. How did you obtain the defendant's email address?
Q. What is the defendant's email address?
Q. Did you receive an email from him bearing that email address?
Q. Did you send an email to him at that email address?
Q. Did he respond to that email by a reply email containing that email address?
 
I renew my offer
 


     [1] See Nelson & Simek, Smoke and Mirrors: The Fabrication and Alteration of Electronic Evidence, 79-JUN N.Y. St. B.J. 11 (2007).  See also Lorraine v. Markle American Insurance Co., 241 F.R.D. 534, 2007 U.S. Dist. Lexis 33020 (D. Md. 2007).

     [2]  In People v. Klapper, 28 Misc.3d 225, 902 N.Y.S.2d 305 (NY Crim Ct 2010)

     [3]  See Prince, Richardson on Evidence § 4-203 [Farrell 11th Ed].

     [4]  See Barker and Alexander, 5 N.Y.Prac., Evidence in New York State and Federal Courts § 9:1; People v. McGee, 49 N.Y.2d 48, 59, 424 N.Y.S.2d 157, 163, 399 N.E.2d 1177, 1183 (1979); People v. Corey, 148 N.Y. 476, 488, 42 N.E. 1066, 1070 (1896).

     [5]   Answers to the questions are for purposes of the example only.

​The material on our website is from  the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case.  It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial.  There are numerous questions for the examination and cross-examination of witnesses. 

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